2009 Hawaii Code
Volume 14
§708-834 - Defenses: unawareness of ownership; claim of right; household belongings; co-interest not a defense.

     §708-834  Defenses:  unawareness of ownership; claim of right; household belongings; co-interest not a defense.  (1)  It is a defense to a prosecution for theft that the defendant:

    (a)   Was unaware that the property or service was that of another; or

    (b)   Believed that the defendant was entitled to the property or services under a claim of right or that the defendant was authorized, by the owner or by law, to obtain or exert control as the defendant did.

     (2)  If the owner of the property is the defendant's spouse or reciprocal beneficiary, it is a defense to a prosecution for theft of property that:

    (a)   The property which is obtained or over which unauthorized control is exerted constitutes household belongings; and

    (b)   The defendant and the defendant's spouse or reciprocal beneficiary were living together at the time of the conduct.

     (3)  "Household belongings" means furniture, personal effects, vehicles, money or its equivalent in amounts customarily used for household purposes, and other property usually found in and about the common dwelling and accessible to its occupants.

     (4)  In a prosecution for theft, it is not a defense that the defendant has an interest in the property if the owner has an interest in the property to which the defendant is not entitled. [L 1972, c 9, pt of §1; am L 1979, c 106, §8; am L 1980, c 232, §41; gen ch 1993; am L 1997, c 383, §69]




  Both the defenses allowed under §708-834(1) are probably unnecessary in light of an informed reading of the substantive definitions of the various modes of theft.  The existence of either condition (a) or (b) would relieve the actor of the culpability required to establish the offense:  the actor could not have intended to deprive another of property (or refuse payment for services) unless the actor was aware that the property or services were that of another; and a claim of right, assuming that it amounts to a belief that the actor is the true owner, would not only indicate that the actor did not have the requisite mental state, it would constitute a mistake of fact defense under §702-218.  The summary and restatement of this subsection is principally for purposes of clarity and emphasis.

  The marital defense of subsection (2) is based upon various theories.  First, the uncertainty of ownership of much household property, together with the potential bitterness of interspousal conflict, provide numerous opportunities for a miscarriage of justice.[1]  Alternatively, it is said that household belongings, defined in subsection (3), constitute a kind of "common pool of wealth," and that misappropriations in this context are so generally tolerated as not to deviate substantially from socially-accepted norms.  A wife who rifles her husband's wallet, or a husband who pawns his wife's jewelry, does not present a grave danger to the community, so long as the activity is so confined.  Finally, criminal courts are unsuited to handle breakdowns in the family structure of which interspousal theft complaints are only a symptom.[2]

  Subsection (4) is intended to cover the situation where an aggrieved person attempts to seek an informal solution by threatening legal action unless restitution, indemnification, or compensation is made.  The most significant instance of this device is the waiver of prosecution commonly offered by insurance companies in exchange for the return of valuable merchandise.  The rationale here is that it is hardly fair to penalize someone for trying to recover one's own goods (or the value thereof), nor could the penal law realistically expect to suppress such natural inclinations.

  Subsection (5) merely requires that the interest which the actor asserts under a claim of right must be inconsistent with that of the victim.  The premise is that if the interest is not inconsistent, it does not justify the actor's possession as opposed to that of the victim.  Furthermore, it is felt that "co- owners should be as well protected against the depredations of other co-owners as they are against outsiders."[3]




  Act 106, Session Laws 1979, amended this section as part of a consolidation of laws pertaining to extortion.

  Act 232, Session Laws 1980, added subsection (4) and the words "co-interest not a defense" in the section heading to restore language erroneously omitted by L 1979, Act 107, §8.

  Act 383, Session Laws 1997, amended this section to provide a defense to prosecution for theft of property to reciprocal beneficiaries.  In establishing the status of reciprocal beneficiaries, the Act provides certain rights and benefits and represents a commitment to provide substantially similar government rights to those couples who are barred by law from marriage.  Conference Committee Report No. 2.


Case Notes


  Claim of right defense discussed.  62 H. 25, 608 P.2d 855.

  Claim of right defense to theft under this section does not apply in a prosecution for robbery.  83 H. 264, 925 P.2d 1088.

  Subsection (1)(b)'s defense was not applicable to offense of unauthorized control of propelled vehicle (§708-836).  10 H. App. 200, 862 P.2d 1073.

  Trial court erred harmfully in excluding, pursuant to HRE rules 401 and 403, defendant's exhibit with respect to defendant's theft-by-deception charges under §708-830(2), on the grounds that defendant's analysis of the tax laws was irrelevant and that evidence of defendant's legal theories would confuse the jury, where evidence that defendant, based on defendant's understanding of the tax laws, had a good faith belief that defendant did not owe taxes on defendant's wages was relevant to whether defendant acted by deception and whether defendant had a defense under subsection (1).  119 H. 60 (App.), 193 P.3d 1260.


§708-834 Commentary:


1.  M.P.C., Tentative Draft No. 2, comments at 104 (1954).


2.  Id. at 104-5.


3.  See Prop. Mich. Rev. Cr. Code, comments at 246.


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